Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences

This document presents the findings of an evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences. The evaluation was conducted by Scotcen Social Research during 2013-14.

5 Use of the Remaining CPO Requirements

5.1 Although, as seen in Chapter 3 (Table 3.2), there was a marked increase between 2011-12 and 2012-13 in the total number of CPOs imposed, many requirements were used relatively less frequently in the second year and several - including the Alcohol and Drug Treatment Requirements - saw a fall in absolute numbers. Following the especially sharp reduction in the use of the Conduct Requirement, only the Unpaid Work or Other Activity (UPWOA) Requirement and the Supervision Requirement were imposed in more than 10% of cases. We also saw a relatively high degree of local variation in the use of the different requirements, beyond that which might be expected on the basis of differences in population size and characteristics.

5.2 In this chapter, we take a closer look at the operation of these less frequently used requirements. The initial focus here is on what we have termed the 'treatment' requirements - those relating to drugs, alcohol and mental health - and their relationship with the Supervision Requirement. (These are referred to as the DTR, ATR and MHTR respectively for the remainder of this chapter.)

5.3 The latter part of the chapter examines a number of specific issues relating to the four remaining requirements - namely, Programme, Conduct, Compensation and Residence.

5.4 The main aim of the chapter is to understand some of the factors that may be influencing the level of use of these requirements. We also consider, however, whether the extent of use of particular requirements (such as ATRs, DTRs and MHTRs) is problematic, in terms of ensuring offenders receive sentences (and services) that are tailored to their needs, or whether such needs are being met through the use of other requirements.

5.5 Although the Supervision Requirement is not discussed separately in this chapter, it is considered in relation to the use of the treatment and Programme Requirements. Chapter 6 (para 6.68) looks in greater detail at some of the broader work carried out under this requirement in the context of the relationship between offenders and CJSW staff.

Use of the 'treatment' requirements

5.6 Both interview and survey data[18] from the evaluation suggest that understanding and practice in relation to the ATR, DTR and MHTR lack consistency, that there is uncertainty in some quarters about when the use of these requirements is appropriate, and a desire in others to see them used more frequently. We suggest that this can be explained by the interaction of several main factors - namely, a degree of uncertainty and ambiguity about eligibility and assessment requirements (from para 5.7); the availability of and access to particular services (from para 5.26); an element of concern about the imposition of orders with multiple requirements (from para 5.32); and the availability and use of Supervision as a 'catch all' requirement (from para 5.38).

Issues relating to eligibility and assessment

5.7 From interviews with CJSW staff, it is clear that there is a lack of certainty about some aspects of each of the treatment requirements. As will be clear below, the nature of that uncertainty varies across the different requirements. Sometimes it appears to be rooted in ambiguity in the original legislation or guidance; at other times, to be the result of misconceptions on the part of CJSW staff and other actors. Overall, though, there is a sense that the treatment requirements are not yet being fully bedded in or understood and that there is some lack of consistency across the country - raising questions about whether and how offender needs are being met and about the transparency of that process.

The Alcohol Treatment Requirement (ATR)

5.8 At first sight, the legislation appears to be highly prescriptive in terms of the target group for the ATR, stating that:

'A court may impose an alcohol treatment requirement on an offender only if the court is satisfied that -

(a) the offender is dependent on alcohol,
(b) the dependency requires, and may be susceptible to, treatment, and
(c) arrangements have been, or can be, made for the proposed treatment, including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the institution or other place to be specified.'
(Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) Section 14)

5.9 The Act itself, however, does not attempt to define what is meant by 'dependency'. The NOS Practice Guidance on CPOs does refer specifically to the technical definition of dependency provided by the World Health Organisation (WHO) which emphasises - among other things - physiological withdrawal. It also specifically addresses the question of how non-dependent alcohol problems should be addressed - namely, through appropriate intervention under the Programme, Supervision or 'Other Activity' part of the UPWOA Requirements.

5.10 Neither document, however, specifies how dependency is to be established nor who should conduct the relevant assessment, although the NOS Practice Guidance states that:

'Depending on the stage of the process, the potential need for this requirement would be identified by CJSW staff in consultation with relevant others involved in the treatment of the individual'
(Scottish Government, 2011a, p42)

5.11 Together with the clear references to dependency, this has been widely interpreted by CJSW staff as implying a need for a medical assessment and, in practice, has deterred them from recommending an ATR in the CJSWR because of the (perceived or actual) difficulty of arranging such an assessment within the timeframe for preparation of the report:

"I suppose in terms of the alcohol treatment, I think one thing that's preventing it is the …definition of dependency. So that kind of breakdown between, 'Is this person dependent?' and 'What do I need to do to get that dependency assessed?' So again the guidance refers to […] there needs to be a kind of medical element."
(Interview 14, CJSW)

"The rehabilitation programme, the basic alcohol [treatment requirement], that one doesn't get used at all because you need to have an assessment by Addiction Services to assess that the man is, or the female is, alcohol dependent and that is almost impossible to get […] arranged within a timescale. So that one is very rarely used."
(Interview 3, CJSW)

5.12 It is important to note, however, that not all CJSW staff in the case study areas interpreted the guidance as implying that prior assessment by a medical practitioner was a prerequisite for the recommendation of an ATR. In one case study area, CJSW staff had begun to conduct their own assessments of both alcohol and drug dependency using the same tools as those used by the NHS locally, the Alcohol Use Disorders Identification Test (AUDIT[19]) and the Drug Abuse Screening Test (DAST-10[20]). This allowed assessments to be conducted rapidly at the CJSWR stage, but also produced assessments that could be subsequently accessed and used by NHS treatment providers.

5.13 Anecdotal evidence from the validation event also suggested that a further local authority (outside the case study areas) had been allowing self-reporting of problematic alcohol use at the CJSWR stage to allow an ATR to be recommended. The local Drug Action Team (DAT) is then being used to assess the individual formally within a few days of the ATR being imposed. In this context, it is worth noting that this particular local authority has a relatively high level of use of ATRs.

5.14 There were also some isolated reports from CJSW staff about Sheriffs imposing ATRs (and MHTRs) before any medical assessment had been undertaken, especially in the period soon after the introduction of CPOs. This was regarded as potentially problematic as it was felt that, if a subsequent medical assessment failed to establish alcohol dependency, the order might be returned to court. It was not possible, however, to establish during the course of the evaluation whether ATRs or MHTRs had actually been imposed in such circumstances or with what consequences.

The Mental Health Treatment Requirement (MHTR)

5.15 The evaluation also suggested a degree of uncertainty around the target group for the MHTR. The NOS Practice Guidance in relation to the MHTR indicates that, for such a requirement to be imposed, an assessment must have been carried out by a medical practitioner. This has led some CJSW staff to conclude that the intended target group for MHTRs is people with relatively serious or 'high end' mental health problems.

"I've never seen that being used because, actually, if somebody's mental health is really that bad they're just […] not going to be suitable to undertake …a court order, you know, it could actually make things worse for them. So …nobody ever uses it."
(Interview 46, CJSW)

"The Mental Health Treatment Requirement - that is very high end again and we work with a lot of people with mental health problems but few who would meet that specific [requirement]."
(Interview 57, CJSW)

5.16 In fact, it is clear in the NOS Practice Guidance that the intention of the legislation is to identify those offenders who might not otherwise be in contact with mental health services but who suffer from a treatable mental condition that would not render them subject to statutory intervention (Scottish Government, 2011a, p.33). In that context, other CJSW staff have clearly interpreted that as implying a wider target group - "the people that are sort of in the middle" (Interview 59, Other Practitioner), as one interviewee put it.

5.17 This uncertainty about the intended use and focus of the MHTR was also reflected in interviews with other professionals. One mental health professional, for example, felt that the majority of mental health disorders could be better addressed by existing mental health disposals available to the court, such as community-based Compulsion Orders or Guardianship. The interviewee suggested that these disposals had greater safeguards for patients as they involve recourse to the Mental Welfare Commission (in terms of getting a second opinion for psychiatric medication) and are also subject to scrutiny by a mental health tribunal, whereas this is not the case for MHTRs.

5.18 The same interviewee did feel there were a handful of conditions not adequately covered by existing mental health legislation where an MHTR might be appropriate, and gave the specific example of paraphilic disorders[21]. However, as the participant explained "I can think of a couple of cases [of this] in the last ten years….it's pretty rare."
(Interview 59, Other Practitioner).

5.19 While the small number of individuals perceived to have eligible conditions is clearly an important factor in the level of use of MHTRs, the requirement to obtain a psychological or psychiatric assessment in order to establish eligibility was also frequently cited as an important barrier to their use, even where that might be appropriate.

5.20 There were examples given of MHTRs both being recommended by CJSW in CJSWRs and imposed by Sheriffs in the absence of such an assessment. As in relation to ATRs, some participants felt this was potentially problematic as, if a subsequent medical assessment failed to establish mental health treatment was necessary, the order might be returned to court. At present, it is not clear how often this happening. This is an issue we return to in the conclusions.

The Drug Treatment Requirement (DTR)

5.21 By comparison with the ATR and MHTR, the wording of the DTR is less prescriptive and, as a result, CJSW staff seem more comfortable with it and clearer about the circumstances in which they might recommend it. Indeed, the fact that it does not specifically focus on those with a physical drug dependency was felt to meet an important need - especially in light of a perceived increase in the number of service users with poly drug use issues.

5.22 That said, a few CJSW participants (usually those who also interpreted the ATR as needing a medical assessment) appear to have bracketed the ATR and DTR together - at least in terms of the severity of the presenting substance misuse problem and the nature of the accompanying assessment:

"…when we were trained, we were told the drug or alcohol requirement is very specifically about a medical intervention that has been assessed by a medical person […] and they would have said, 'Yes, he's available for - he needs to go into treatment'.
(Interview 37, CJSW)

5.23 It is also worth noting that, although most of the CJSW staff interviewed understood that a DTR might be imposed in circumstances in which an individual's drug problem was not serious enough to merit a DTTO, there was a perception that some Sheriffs were imposing DTRs when a DTTO would be more appropriate and vice versa.

"I would be seeing it that a DTTO would be seen as […] potentially a higher tariff because of the intensity that's associated with it…So if we were looking at something like a Drug Treatment Requirement, […] the guidance actually refers to women that are involved in drug use, whose offending isn't quite serious enough to justify a Drug Treatment and Testing Order; you would perhaps look at a CPO with a Drug Treatment Requirement. So again, I think there's just nuances that perhaps Sheriffs and, some report-writers haven't quite got their head round."
(Interview 13, CJSW)

5.24 This proposition is supported by the data, outlined in Chapter 3, showing the use of DTRs by each local authority to be inversely related to its use of DTTOs. The scope for further blurring of this distinction is likely to increase if and when the DTTO II (with its focus on lower tariff offenders) is rolled out nationally.

5.25 Anecdotal evidence from the validation event suggests the extent of use of both DTTOs and DTRs may be related to the nature of assessment services available. In one part of the country, for example, there is 'fast track' drug treatment service which has well-established assessment procedures. This appears to have made it easier to implement DTRs and it is noticeable that use of the requirement is relatively high in the local authority areas covered by this service.

Issues relating to the availability of and access to services

5.26 The likelihood that offenders will receive a CPO with an explicit treatment requirement has also been influenced by the ability of CJSW staff to identify and specify the exact nature of that treatment. This has a number of dimensions (of relevance, variously, to ATRs, DTRs, MHTRs and, indeed, to Programme Requirements). These include an element of confusion about the nature of the treatment that can be provided under the requirements; the difficulty of securing treatment places within the CJSWR timescales; and lead times for treatment to actually begin or be completed. Each of these is expanded on below.

5.27 Despite clear descriptions in the NOS Practice Guidance of what can be included as treatment for the DTR and ATR, a number of CJSW interviewees wrongly believed particular constraints to apply. For example, some reported that the DTR and ATR could only be used for people who need residential treatment or detox - a confusion which may have arisen simply because of the connotations of the word 'treatment' in the titles of the requirements.

"The Act wasn't clear enough… because people assumed 'treatment' meant treatment that had to be, you know, health, and it doesn't."
(Interview 76, CJSW)

5.28 Moving on to the question of the need to provide details of treatment at the point the requirement is imposed, there are, in fact, some subtle differences in the wording of the legislation in relation to ATRs, MHTRs and DTRs. For example, the legislation in relation to the MHTR is clear that the details of treatment must be specified and 'arrangements made for the proposed treatment' at the CJSWR stage. In relation to the ATR, the wording is similar, although it requires that 'arrangements have been, or can be, made for the proposed treatment'. The DTR shares this latter wording in relation to arrangements, but is looser about the extent to which the details of the treatment itself must be outlined in advance, indicating only that the offender 'must submit, during the specified period, to treatment by or under the direction of a specified person'.

5.29 Despite these minor differences, there is a clear onus on CJSW staff to include a significant level of detail about proposed treatment when recommending one of these three requirements. Of course, even where suitable services do exist, it can be extremely challenging to both complete an assessment and line up a treatment place in advance of sentencing. This appears to be the case for residential or detox services.

"I suppose the guidance for CPOs is very clear that in order to recommend an alcohol requirement for example, you should already have a place set up in a rehab that the person will go into straight away. And that doesn't fit really with how rehabilitation centres and alcohol programmes work round here. They usually have a four to six month waiting list, or longer. Sometimes you have to look at funding and that type of thing as well. So that's a barrier."
(Interview 56, CJSW)

5.30 This is also the case for psychological interventions, as offenders on CPOs are generally subject to the same waiting times as the general population. These waiting times are subject to HEAT targets which are intended to deliver faster access to mental health services by delivering 18 weeks referral to treatment for Psychological Therapies from December 2014 (NHS Scotland Performance and Business Management, 2013). In practice, access to treatment varies by local authority and according to the type of therapy and, depending on these factors, an offender may experience a wait for treatment which is longer than the original order. This is an additional potential barrier to the recommendation of treatment requirements.

5.31 Some CJSW staff found these barriers frustrating, as the resulting necessity to address substance misuse or mental health issues within the context of a Supervision Requirement can reduce the scope for other important work with the offender.

"… [it's] frustrating, because of the fact that you've got highly key individuals who need, for public safety, need the counselling undertaken […] and also for their, for their own wellbeing, really, this work has to be done. And you end up sometimes in supervision having to do a hotchpotch of addiction counselling yourself because you know it's not getting done elsewhere. That dilutes the amount of offence-focused work that I can undertake with somebody because I'm having to deal with various addiction issues."
(Interview 14, CJSW)

Reluctance to recommend or use multiple requirements

5.32 A further possibility worth considering in relation to the use of the treatment requirements is that they are not being used because of a reluctance on the part of CJSW staff to recommend multiple requirements.

5.33 The evaluation certainly provides evidence that some CJSW staff believe that recommending multiple requirements 'sets people up to fail', especially when offenders have drug, alcohol or mental health problems.

"…rather than have separate requirements and setting somebody up to fail, you could have that all under the supervision action plan as A, B, C, D in the action plan, rather than individual requirements."
(Interview 14, CJSW)

"…you're mainly looking at supervision and then steering people towards that work and kind of multi-agency working, rather than having something that might well get them breached. ….we can do the same work but without the risk of having to get warrants."
(Interview 56, CJSW)

5.34 This argument was especially evident in relation to offenders already in contact with drug, alcohol or mental health services. In such circumstances, CJSW staff sometimes saw little or no added value in recommending an additional treatment requirement - especially when it carried a risk of breach.

"…because the treatment was already in place… the social worker didn't make that recommendation because they felt, 'What's the point? They're already working wi' services. Just [recommend] Supervision, and I'll work with them.'"
(Interview 76, CJSW)

"…there's almost a kind of perception of, well, 'if it's not broke', or 'like, we can continue, we'll work with them on Supervision'; 'If I get a Drug Treatment Requirement, I might be setting them up to fail, and they're already working with addictions'."
(Interview 13, CJSW)

5.35 It is possible that this view has, in part, been influenced by practice under the previous probation orders, in which multiple conditions were associated with individuals at higher risk of offending and who were actually more likely to breach. In other words, the risk of breach was seen as attaching to multiple conditions per se rather than to the characteristics of the individuals subject to them.

5.36 This perspective may also have been reinforced by the NOS Practice Guidance on CPOs, which states:

'Most community payback orders will consist of at most three requirements. The more requirements attached to the order, the more likely it is that the individual will fail to comply, therefore careful targeting of the requirements to assessed risk and needs is necessary.' (Scottish Government, 2011a, p44/45)

5.37 But while the evaluation suggests that CJSW staff are concerned about the risk of 'setting people up to fail', as we will see in the following Chapter (para 6.9), there is actually little current empirical evidence that multiple requirements are necessarily associated with higher levels of breach.

The availability and use of Supervision as a 'catch all' requirement

5.38 In the context of the various issues described above, it is perhaps not surprising that alcohol, drug or mental health issues are very commonly addressed under the Supervision Requirement rather than one of the specific 'treatment' options. This often seems appropriate - indeed, as stated earlier the NOS Practice Guidance on CPOs actively suggests that some work relating to less complex alcohol, drug or mental health issues should be done in this way.

5.39 However, there was also some evidence of concern - from CJSW staff and others - about its use as a potential 'catch all'. Although many social workers appear to be happy with the flexibility afforded by the requirement, others felt there was a danger that the clarity and transparency of the new disposal may have been lost.

5.40 Sheriffs, too, expressed concern about the effectiveness and transparency of Supervision by comparison with a dedicated treatment or Programme Requirement - again, a theme returned to later in the report (see para 7.22).

5.41 Information included in the annual CPO reports submitted to the Scottish Government highlighted the different approaches of CJSW managers across Scotland in relation to this issue. In one local authority, for example, it was clear that senior managers were encouraging the use of the Supervision Requirement instead of treatment requirements whereas another local authority, admitted that they are still adjusting to the needs led menu of CPO requirements, which they saw as different to the "tariff system" of Probation Orders. Again, this highlights the extent to which CPOs have seen inconsistent practice across different areas.

Does it matter?: Understanding whether and how drug, alcohol and mental health needs are being met in other ways

5.42 We have seen that the three treatment requirements are being used relatively rarely, and that there are a range of possible explanations for this. The question remains, however, of whether such issues are preventing meaningful and tailored work from being carried out with offenders with drug, alcohol and mental health problems. For the most part, drug, alcohol and mental health treatment is still being delivered. As we have already seen, such issues are regularly being addressed within the scope of the Supervision Requirement, and some work is also being done under other requirements (such as Programme, Conduct and even 'Other Activity'). Moreover, many of the offenders coming before the courts are already in contact with relevant services.

5.43 Nevertheless, there are several important consequences of the way that such issues are currently being handled. The first is that there is considerable variation by area in strategies for ensuring provision of appropriate treatment.

5.44 For example, in one case study area, some work that could conceivably be done under the Programme and treatment requirements is carried out under the Supervision Requirement (an approach which is explicitly recognised in their annual report on CPOs to the Scottish Government as cited in para 5.41). Young males are given unaccredited programme work (in relation to general offending behaviour) through the Supervision Requirement. Female offenders are given unaccredited programme work and alcohol, drug and/or mental health treatment - via a partnership project involving the NHS, local authority and a national third sector organisation - also through the Supervision Requirement.

5.45 In another area - Area 2 - seconded workers from third sector organisations are used to provide wider support to people with mental health issues and/or problematic alcohol use, again under the Supervision Requirement.

5.46 A second potential consequence is that some of the original aspirations for CPOs may not be being met in relation to such cases - in particular, that the disposal should be simpler and more transparent. Put simply, there is a lack of clarity and visibility about the handling of offenders with drug, alcohol or mental health problems. Even if such individuals are receiving high quality treatment and support, the difficulty in accounting for such arrangements may ultimately erode the credibility of the overall CPO framework - posing the question of why certain requirements exist in the first place and making it difficult to plan effectively for appropriate service provision. The implications of these issues are returned to in the conclusions.

Specific issues related to the other requirements

5.47 In the remaining part of this chapter, we focus on the operation of the remaining requirements - namely the Programme, Conduct, Compensation and Residence Requirements. Again, it is worth noting that, in practice, there is considerable overlap between these and some of the requirements already discussed - especially ATRs, DTRs, MHTRs and Supervision.

Programme Requirement

5.48 A range of both accredited and unaccredited programmes was being offered in each of the case study areas under the Programme Requirement. Examples of accredited programmes included the Caledonian programme (domestic abuse); Change (domestic abuse); Constructs (general offending); Community-Sex Offender Groupwork Programme (C-SOGP); Moving forward, making changes (sex offender) and Community Intervention Service for Sex Offenders (CISSO).

5.49 As stated earlier in this section, unaccredited programme work included some programmes that had either not got their accreditation or not had it renewed (e.g. Constructs).

5.50 It should be noted that several CJSW staff mentioned that they thought the Programme Requirement was intended solely for the provision of accredited programmes, even though the NOS Practice Guidance on CPOs specifically states that it can be used to deliver both accredited and unaccredited programmes
(Scottish Government, 2011a, p31).

"…obviously that [the Programme Requirement] only pertains to the accredited programmes."
(Interview 57, CJSW)

5.51 Perhaps as a result of this, unaccredited programme work is being carried out under different requirements - often under Supervision.

5.52 Examples were also given of CJSW staff recommending a Programme Requirement in relation to delivery of an accredited programme but Sheriffs subsequently imposing this work under a Conduct Requirement (despite the NOS Practice Guidance suggesting that this should not happen - see para 5.59).

"So, I'll ask for a Programme Requirement, so I've got a Programme Requirement for him to attend [a] sex offender programme, he'll come back with a Conduct Requirement and I'll be like, 'But that's different'."
(Interview 37, CJSW)

5.53 While some work that might reasonably be expected to be carried out under the Programme Requirement is being delivered under other requirements so, too, is some work that might conceivably be delivered under other requirements being delivered under the Programme Requirement. As highlighted earlier, for example, offenders in Area 1 are being given alcohol 'treatment' under a Programme Requirement.

5.54 There were also several comments regarding the lack of suitable programmes for female offenders.

Conduct Requirement

5.55 In the absence of any automatic provision under Community Payback Orders to breach an offender if they commit a further offence, Sheriffs were initially using the Conduct Requirement to require the offender to be of good behaviour or not to offend. This practice was successfully challenged, with an Appeal Court judgement in June 2012
(Kirk and Hunter v Procurator Fiscal Stirling (2012) HCJAC 96).

5.56 After this court challenge, CJSW reported a fall in the number of Conduct Requirements imposed. Following the court order, a few CJSW participants reported being told not to recommend Conduct Requirements because of the legal challenge and some also felt there was hesitancy by Sheriffs to use them.

"[W]e got numerous Conduct Requirements that 'you will not commit another offence during the period of this order'…But that got legally overturned and they've all been shelved."
(Interview 65, CJSW)

5.57 By the time the fieldwork was conducted for the evaluation, CJSW staff generally felt that Conduct Requirements were being used more appropriately, although some concerns were still raised. For example, it was reported that some Sheriffs were using the Conduct Requirement to specify that someone should stay away from a specific location. Although this is in line with the NOS Practice Guidance on CPOs (Scottish Government, 2011a, p.42/43), several CJSW interviewees indicated that they were unsure how it could be enforced.

"'You shall not enter the high street in X between the hours of such-and-such and such-and-such,' and they go, 'And how are we supposed to enforce that?'."
(Interview 65, CJSW)

5.58 There was also some confusion about whether the Conduct Requirement could be used to ensure that an offender stayed away from a certain person, typically a victim of their offence. In some areas, CJSW interviewees thought this was acceptable; in others they thought that it was not the intended purpose of the requirement. Although the NOS Practice Guidance on CPOs says that the Conduct Requirement provides courts with 'additional flexibility to impose requirements on an offender to do or refrain from doing specified things not covered elsewhere in the legislation (Scottish Government, 2011a, p.42/43), it does not explicitly discuss whether it can or cannot be used to ensure that an offender stays away from a specific person.

5.59 As seen in the preceding sub-section, CJSW staff also indicated that the Conduct Requirement was being regularly used to instruct attendance at a programme or Alcohol/Drug counselling. According to the NOS Practice Guidance on CPOs this is not an appropriate use of the requirement. It states that the Conduct Requirement should not be used where another requirement would meet the objective:

'…where it is deemed necessary for an individual to undertake alcohol treatment it would not be necessary or permissible, under the legislation, for the court to impose a Conduct Requirement to ensure that the individual complies with alcohol treatment'
(Scottish Government, 2011a, p.43)

Compensation Requirement

5.60 CJSW staff highlighted some issues in relation to this requirement. First, it was suggested that a Compensation Requirement was sometimes imposed (alongside a Supervision Requirement necessitated by the legislation) in cases in which they considered that there was little prospect for meaningful work to be done with the offender under Supervision. CJSW staff found this frustrating, as they felt it effectively meant they had to 'find' work to do in supervision.

"We're finding Compensation Requirements are an absolute nightmare and [it is] ridiculous that they […] can only be imposed alongside the Supervision Requirement which is the bane of our lives on a weekly basis at the moment. Because sometimes, somebody's suitable to pay compensation or to have unpaid work but they don't need supervision, there's no focus for supervision."
(Interview 46, CJSW)

"I'm having to waste my time. If there's no real need to supervise somebody, no real need to go for offence-focused work with somebody, …as a qualified social worker who's paid X amount per year, you know, a good salary, to protect the public, to prevent people from re-offending, to commit to the social work values what I've signed up for, just to manage somebody to actually repay a fine, at the end of the day, is ridiculous."
(Interview 14, CJSW)

5.61 The frustrations of such a situation are amplified for CJSW staff when an offender cannot pay the Compensation Requirement off in the intended timescales and is consequently given an extension on the Supervision Requirement.

5.62 In general, CJSW staff recognised the value of a Compensation Requirement when it could be usefully tied in with offence-focused work. Otherwise, some felt that it made more sense for a Sheriff to impose a separate Compensation Order, although interviewees expressed some uncertainty about whether this was possible. According to the NOS Practice Guidance on CPOs, 'a Compensation Order continues to be a disposal available to the court independent of a CPO'
(Scottish Government, 2011a, p.29).

5.63 Finally, the evaluation highlighted a specific issue around the use of Compensation Requirements in relation to domestic abuse cases. One CJSW interviewee cited an example of someone on his current caseload who had "received a Compensation Requirement for an assault on their partner, and you know that can feel quite difficult for them….equally if they are still in a relationship that's a bit strange…..he might well be paying her with her own money" (Interview 56, CJSW). Recognising that financial abuse is common in relationships where there is domestic abuse, CJSW staff indicated that they would not recommend a Compensation Requirement but noted that sometimes it is still imposed.

Residence Requirement

5.64 CJSW staff felt that the Residence Requirement was being proposed (by social workers) and used (by Sheriffs) relatively rarely, and this is reflected in the published statistics, which show that only 0.2% of CPOs had a Residence Requirement (2012-13).

5.65 Awareness and understanding of this requirement was certainly low. One CJSW interviewee, for example, thought that the Residence Requirement was aimed at homeless people - "that only comes in really if they're homeless" (Interview 56, CJSW). However, the NOS Practice Guidance specifically states that 'Problems of homelessness alone should not suggest imposition of a Residence Requirement'
(Scottish Government, 2011a, p.33).

5.66 Another cast doubt on Sheriffs' understanding of the requirement, explaining that they had "one last week where the Sheriff dictated that this person couldn't move out of Scotland because they kept jumping over the border and getting orders there." (Interview 68, CJSW). According to the NOS Practice Guidance on CPOs (Scottish Government, 2011a), a Residence Requirement can be imposed by a court to require an individual to reside within designated accommodation, it does not specifically state whether the requirement could be used to require an individual to reside within a designated country.

5.67 The lack of understanding of the Residence Requirement does not mean relevant issues are not being addressed; again, it is likely CJSW may be dealing with this under the Supervision Requirement,

"…if we do use it, it's gonna be for particular persons and reasons maybe at higher risk and so on and so forth but I don't think we use it much 'cause we probably think that a lot of the things that we can do, …on a Supervision Requirement."
(Interview 35, CJSW)

Key points

5.68 The three 'treatment' requirements - ATRs, DTRs and MHTRs - are being used relatively rarely but also inconsistently across different areas. There are issues here around differences in understanding of the exact target group for each and of what constitutes treatment.

5.69 From a CJSW point of view, however, the most significant obstacle to proposing an ATR or MHTR is the apparent necessity to obtain a medical assessment in advance of sentencing, although, in a few areas, it appears that some of these requirements are being imposed without a formal medical assessment. While there are some indications that this latter approach may lead to a higher level of use, some participants felt it may also run the risk of such orders being returned to court.

5.70 Even if the relevant assessments can be obtained, an ATR or MHTR (or indeed a Programme Requirement) all need the treatment to be specified in detail at the point of sentence. This can again be difficult within the timeframes for preparation of the CJSWR.

5.71 For all three treatment requirements, waiting times for certain types of treatment (for example, residential detox and psychological interventions) are often lengthy - indeed, waiting times to begin such treatment are often longer than the length of the CPO itself. This also has the effect of limiting their use.

5.72 Although most CJSW staff are more content with the wording of the DTR and with its potential scope (than the ATR or MHTR), there was also some evidence that others remained uncertain about exactly when a DTR should be used instead of a DTTO. CJSW interviewees also gave examples of Sheriffs imposing a DTR when they felt a DTTO would have been more appropriate, and vice versa.

5.73 Many CJSW staff have a concern about the use of multiple requirements and this, too, appears to be a factor in limiting the extent to which they are likely to propose the use of the treatment requirements.

5.74 In the context of the various issues described above, it is perhaps not surprising that alcohol, drug or mental health issues are commonly addressed under the Supervision Requirement. While this is often entirely appropriate, there was also some evidence of concern about its use as a potential 'catch all' and about the effectiveness and transparency of work conducted under Supervision by comparison with that which might occur under one of the more structured requirements.

5.75 While it appears that the needs of offenders with drug, alcohol or mental health issues are generally being met, there is considerable variation in exactly how this is happening. Moreover, the lack of transparency around these issues has potential implications for effective service planning and provision.

5.76 The wide-ranging character of the Supervision Requirement also impacts on the use of Programme and Residence Requirements.

5.77 CJSW interviewees were often frustrated about the way the Compensation Requirement is being used and, in particular, about its imposition in cases where they consider that there is little prospect for meaningful work to be done under Supervision. These frustrations are amplified in situations in which an offender requires an extension to the compensation element.


Email: Sacha Rawlence

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